United States v. Estrada

643 F. App'x 912
CourtCourt of Appeals for the Eleventh Circuit
DecidedFebruary 24, 2016
DocketNo. 15-12178
StatusPublished

This text of 643 F. App'x 912 (United States v. Estrada) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Estrada, 643 F. App'x 912 (11th Cir. 2016).

Opinion

PER CURIAM:

This is Defendant Rudy Estrada’s second appeal of his sentence following his guilty plea to illegal re-entry after being deported subsequent to an aggravated felony conviction, in violation of 8 U.S.C. § 1326(a) and (b)(2). In his first appeal, we vacated Defendant’s 48-month sentence and remanded for resentencing because the district court erred by applying a 16-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii).1 United States v. Estrada, 777 F.3d 1318, 1322-23 (11th Cir.2015). On remand, the district court imposed a 41-month sentence. Defendant now appeals that sentence and argues for the first time that the district court procedurally erred and violated his due process rights by relying on a clearly erroneous fact — that he had been deported several times and returned to the United States. After careful review, we affirm.

I. BACKGROUND

In 2004, Defendant, a citizen of Mexico, was convicted in Florida state court of throwing a deadly missile, in violation of Fla. Stat. § 790.19. Defendant was removed to Mexico, and later illegally reentered the United States. Defendant’s illegal re-entry was discovered when he was arrested in Florida on state drug charges.

After Defendant pleaded guilty to the present illegal re-entry offense, the district court imposed a 48-month sentence. On appeal, we concluded that the district court erred by applying a 16-level enhancement pursuant to § 2L1.2(b)(l)(A)(ii) because Defendant’s prior conviction for throwing a deadly missile was not a crime of violence. Estrada, 777 F.3d at 1322. However, we determined that Defendant’s prior convic[914]*914tion would support an eight-level enhancement under § 2D1.2(b)(l)(C) because it met the definition of an aggravated felony. Id, at 1322-23. Consequently, we vacated Defendant’s sentence and remanded for the limited purpose of having the district court resentence Defendant based on the guideline range applicable with the eight-level enhancement. Id.

In anticipation of resentencing, the probation officer completed a revised Presen-tence Investigation Report (“PSR”). With the inclusion of the 8-level enhancement under § 2L1.2(b)(l)(C), Defendant’s total offense level was 13. The PSR assigned Defendant a criminal history category of VI based on 17 criminal history points. Of note, in 2010 and 2011, Defendant was convicted of various cocaine trafficking offenses in Florida state court and received a total sentence of 15 years’ imprisonment. Based on a total offense level of 13 and a criminal history category of VI, Defendant’s guideline range- was 33 to 41 months’ imprisonment.

At the resentencing hearing, after ensuring that there were no objections to the PSR, the district court calculated a guideline range of 33 to 41 months’ imprisonment. Before imposing sentence, the district court stated that it had considered the 18 U.S.C. § 3553(a) factors and noted that Defendant’s new guideline range was significantly lower than his original guideline range. The district court then stated:

That’s the good news for you. The bad news, I guess, is that I thought, when the guidelines were much higher, I considered them, but didn’t follow them, and imposed a sentence significantly below the guidelines at that time. Not much has changed, really. Your criminal history is what it is, and what it’s always been, and you’ve been deported several times, you’ve come back, and you continue to make' criminal activities. The 15-year sentence you’re serving is based upon some of those state criminal activities.
With regard to your good behavior at sentencing — or in custody, rather, you seem to recognize ... that you are doing apparently much better now, in custody, than you did when you were not in custody. The Court considers, at some level, the progress you’ve made. I recognize you will receive a benefit, because of that, in terms of good time, things like that.

The district court rejected Defendant’s request for a downward variance, concluding that it was not appropriate under. the § 3553(a) factors. Consequently, the district court sentenced Defendant to 41 months’ imprisonment to run consecutive to his 15-year Florida state sentence.

II. DISCUSSION

Using a two-step process, we review the reasonableness of a district court’s sentence for an abuse of discretion. United States v. Cubero, 754 F.3d 888, 892 (11th Cir.2014). We first look to whether the district court committed any significant procedural error, such as miscalculating the advisory guideline range, treating the Sentencing Guidelines as mandatory, failing to consider the 18 U.S.C. § 3553(a) factors,2 selecting a sentence based on [915]*915clearly erroneous facts, or failing to adequately explain the chosen sentence. Id. Then we examine whether the sentence is substantively reasonable in light of the totality of the circumstances. Id. The party challenging the sentence bears the burden of showing that it is unreasonable. United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir.2008).

We review factual findings for clear error. United States v. Williams, 340 F.3d 1231, 1234-35 (11th Cir.2003). However, when a defendant raises a sentencing argument on appeal that was not raised before the district court, including á challenge to the procedural reasonableness of his sentence, we review for plain error. See United States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir.2014). Under plain error review we will reverse where there is “(1) an error (2) that is plain and (3) that has affected the defendant’s substantial rights, and ... (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Madden, 733 F.3d 1314, 1322 (11th Cir.2013).

On appeal, Defendant only challenges the procedural reasonableness of his sentence. In particular, he argues that the district court violated his due process rights by relying on a clearly erroneous fact,'namely that Defendant had been deported multiple times and reentered the United States. As Defendant properly concedes, he did not raise this argument before the district court. Accordingly, our review of his argument is limited to plain error. See Vandergrift, 754 F.3d at 1307.

We conclude that Defendant has not met his. burden of showing that the district court plainly erred in imposing his 41-month sentence by relying on the fact that he had been deported multiple times and returned to the United States.

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Related

United States v. Williams
340 F.3d 1231 (Eleventh Circuit, 2003)
United States v. Earl Robert Wade
458 F.3d 1273 (Eleventh Circuit, 2006)
United States v. Pugh
515 F.3d 1179 (Eleventh Circuit, 2008)
Jones v. United States
527 U.S. 373 (Supreme Court, 1999)
United States v. Ghertler
605 F.3d 1256 (Eleventh Circuit, 2010)
United States v. Fritznel Reme and Fritz Pierrot
738 F.2d 1156 (Eleventh Circuit, 1984)
United States v. Jose Manuel Candelario
240 F.3d 1300 (Eleventh Circuit, 2001)
United States v. Alland Philidor
717 F.3d 883 (Eleventh Circuit, 2013)
United States v. Kenneth Lamar Madden
733 F.3d 1314 (Eleventh Circuit, 2013)
United States v. Francisco Cubero
754 F.3d 888 (Eleventh Circuit, 2014)
United States v. Walter Henry Vandergrift, Jr.
754 F.3d 1303 (Eleventh Circuit, 2014)
United States v. Rudy Estrada
777 F.3d 1318 (Eleventh Circuit, 2015)
United States v. Ben Bane
720 F.3d 818 (Eleventh Circuit, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
643 F. App'x 912, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-estrada-ca11-2016.